356 I am firmly of the view that Mr Dieter did indeed forget what he had done with the keys on the 6 October. I do not consider that his actions were unreasonable in the circumstances nor do I consider that they were reckless or that his failure of memory is a basis for any particular concern that would relate to his ongoing employment. I have other concerns that go to his ongoing employment that I will deal with in due course.
357 I have carefully considered the evidence on the keys incident. That clearly indicates the following:
� A combination of Mr Dieter's evidence and the 28 September 2005 e-mail of Ms Darby to Steve Lund concerning the key audit of Mr Dieter's keys (Exhibit 10 - Annexure A), would show that Mr Dieter was placed on the Key Watcher system around 26 - 28 September 2005. He was given verbal instructions only on the use of the Key Watcher system. There were no written directions or guidelines provided to him. There was no instruction given to him as to what to do if the Key Watcher failed and keys could not be returned. There was no evidence to the contrary and I accept Mr Dieter's evidence on that matter.
� Mr Dieter's keys only provided internal access within the Centre (and not to the Units), did not provide external access, had no identifying label only a locksmith's contact and they were returned to the Centre approximately 2 weeks later.
� Mr Dieter's previous long-term practice, firstly at the Mt Penang facility and subsequently at Frank Baxter, had been to take his keys home. There is no evidence to suggest that this had been a problem or was a practice that was carried out without the knowledge of Centre administration and if not officially approved, it was certainly condoned. There was no evidence as to what he did with his keys in those years when he did take them home, whether he kept them in his residence or indeed had a practice of leaving them in the centre console of his car.
� The week of 6 October was one where Mr Dieter only worked two full days and a part day on the Thursday. Monday 3 October was a Public Holiday and Mr Dieter did not work, as evidenced by the e-mail exchange with Ms Walker. When he came to place his keys in the Key Watcher when he sought to depart the Centre at approximately 10:30 a.m on the Thursday, he had only been on the Key Watcher system for between 5 and 7 working days.
� When he left the Centre, instead of going home as was his usual practice, he spent the rest of the day, at least, driving straight to Coolangatta airport in Queensland, a not inconsiderable distance, picked up his wife and then drove to Brisbane where they stayed the weekend. It is reasonable to conclude that he also spent a considerable number of hours driving back to his residence at Terrigal the following Sunday. Whilst in Brisbane his car was broken into and a number of valuable personal items stolen ( including the keys as he subsequently realised).
� Given the lengthy time involved in the drive to Queensland and what occurred over the weekend with the obvious stresses that would accompany any such incident I can entirely understand and do not consider it unreasonable or incomprehensible in the least that when he went to access his keys from the Key Watcher on Monday 10 October and could not, that he had forgotten just what he had done with the keys the previous Thursday with all that had occurred in the meantime.
� I also take into account that all this occurred in the context of the week of 2 to 6 October, being the first week in which he was moving to only working until Thursdays, and taking Fridays off as annual leave, as a consequence of having accumulated too much annual leave as he had not taken leave for two years. It was Mr Dieter's evidence that he still retained his same workload, which now had to be done in four days rather than five and during this period or at least to the end of the year if not slightly longer, due to staff shortages of various kinds, there were at times as few as only two counsellors (rather than eight) including Mr Dieter, at the Centre. Any workload issues would clearly have being exacerbated in the lead up to 6 October by it being an even shorter working week due to the Monday Public Holiday.
� The keys incident also took place virtually straight after the e-mail exchange between Ms Walker and Mr Dieter concerning the missing NCN for 16 September. The last exchange between the two on that issue occurred on Tuesday 4 October. His frame of mind (which I will address later) is very much evident in that e-mail exchange. Mr Dieter did not strike me as a patient man. He was clearly in a hurry on the Thursday. He had, only the week before, as confirmed by Mr Wilson in his 11 October memo, taken exception to having his keys removed and replaced, thus enabling placement on the Key Watcher system, without his knowledge or countersignature for those keys. Giving the keys to someone else on the Thursday did not occur to him and even if it had, based on his experience the week before and having observed Mr Dieter and listened to him during proceedings, I doubt very much that he would have considered that an appropriate course of action without some clear indication that someone was prepared to sign for and take responsibility of the keys. That would no doubt have created some difficulty for whoever he approached.
358 That is not to say that Mr Dieter's actions could not be regarded as careless rather than reckless, in that he placed them in the centre console of the car rather than keeping them on his person or removing them from the car at the end of the day. There is also no doubt he could have sought, if he wasn't in such a hurry, an appropriate alternative to taking the keys away from the Centre.
359 However as I have said, in the circumstances, I do not consider that firstly, taking the keys from the Centre was entirely unreasonable, it was the appropriate "common sense" for Mr Dieter to apply, given what I have outlined above, secondly it was not unreasonable to have forgotten on the Monday just what it was he had done with the keys, notwithstanding that it had only been four days ago. An awful lot had happened in those four days that could not be considered to be what normally happened between leaving and returning to work particularly over the course of a weekend.
360 I do not consider that he deliberately lied in his first statement on 10 October when he said he had not taken the keys home. I agree that that statement represented his recollection at that moment and it was not until Mr Wilson spoke to him a second time, advised him what the Key Watcher alert indicated, told him to check again in a variety of places including his home and to go home if necessary, that that prompted his memory that in fact on the previous Thursday he did not go straight home and therefore took the keys with him to Brisbane and they had therefore also been stolen.
361 I agree with Mr Easton that at that stage there was no indication that his employment was in jeopardy and I can see no reason for Mr Dieter to have deliberately told untruths. Indeed having observed Mr Dieter in the witness box and through the various documents before me, Mr Dieter is clearly a person who can be more than frank and outspoken in what he says and how he says it and doesn't shy away from that. Any dissembling arises from his post facto attempts to justify or validate his actions. Indeed this was a recurrent theme throughout the proceedings in relation to other issues in contention.
362 I also have to agree with Mr Dieter that apparently no one took any notice of the "Key Alarm Overdue" logged at 19.07 on 6 October between that time and Mr Dieter bringing to the attention of management on the Monday that he could not retrieve his keys and believed someone had taken them. There was no evidence as to what was supposed to happen as a consequence of a "Key Alarm Overdue" but I would hope that any deficiency in this regard has since been addressed.
363 I also note that Mr Wilson, in his 11 October memo, made no suggestion whatsoever that Mr Dieter had been dishonest or had lied. It is also apparent that it was only following the second statement by Mr Dieter, that a "Key Watcher Transaction User Report" was generated, which confirmed his attempts to return the keys on 6 October.
364 It was Mr Dieter's evidence he had no knowledge that Mr Wilson was submitting a report which recommended that the matter of the keys proceed to disciplinary action. He apparently was not given any oral or written instructions subsequently concerning the keys and what should or should not have done with them. In fact nothing more was said about the keys and he received a replacement set some two weeks later. There was no evidence to the contrary from Mr Wilson.
365 There is no evidence whatsoever that there were any heightened security measures taken or indeed that any thing at all occurred, apart from Mr Wilson's report, as a consequence of this alleged reach of security on the part of Mr Dieter either in relation to Mr Dieter himself or the staff generally.
366 I have to say that I cannot for the life of me see why this matter had to proceed to disciplinary action at the level at which it did (which was the highest level possible) and why it could not simply have been a dealt with immediately by Mr Wilson, as the Centre Manager, indicating to Mr Dieter both verbally and in writing, what he should have done and what he ought to do in the future, should such a situation arise again, and if thought necessary, reprimanding him. It does not appear that anyone has any delegated authority to handle what really was in my view a relatively minor matter given all the circumstances, which Mr Wilson could more thoroughly have ascertained at the time.
367 I also consider that at the very least, Mr Wilson should have informed Mr Dieter that he was making a report and recommending that the matter proceed to disciplinary action.
368 I agree with Mr Easton that this was really a minor issue given that essentially nothing happened after the incident and when it is viewed against the background of all the relevant circumstances outlined above. For it to have taken some 6 months before it was brought to Mr Dieter's attention, and that by way of an allegation of misconduct, is totally unreasonable and unfair.
369 There was also no evidence, not just of any previous security breaches or security issues with Mr Dieter, but no evidence that there had been any issues of any kind of a disciplinary or adverse nature raised against Mr Dieter in all the 10 years of his employment.
370 To suggest that Mr Dieter's memory lapse is in some way indicative of some ongoing condition or represents a security risk is in my view ridiculous. I can think of numerous analogous situations, (which I will not outline) involving my own misplacement/forgetfulness in relation to keys/car keys/mobile phone/glasses etc, and I like to think that I have an exceptionally good memory. The point I reiterate is, that given all the circumstances, I can entirely understand and do not think it unreasonable that Mr Dieter genuinely forgot what he had done with his keys.
371 Similarly I do not consider it unreasonable that he took the keys him as he had previously done, up until a week prior, for last 10 years. I accept that that was a commonsense solution for Mr Dieter in all the circumstances that were prevailing at the time.
372 I consider that this incident should only have warranted at most a caution or reprimand issued by Mr Wilson or if he had no delegated authority to issue such caution or reprimand, whoever did have such authority, but certainly at a level lower than requiring a reference to Mr Houston's Unit. A caution or reprimand issued six months down the track is useless and certainly would not indicate a grave concern for security at the Centre arising from his actions.